Restoration to the Original State The institution of restoration to the original state is regulated as the second division in the sixth chapter of the Code of Civil Procedure No. 6100. The legislator has regulated the matter of requests in the text of Article 95. ‘A person who, for reasons beyond their control, is unable to perform an act within the time specified by law or definitively determined by the judge, may request restoration to the original state.’ However, the requirement that this remedy be a last resort is clearly established by the provision stating: ‘If the same result sought by the action that could not be performed within the time limit can be achieved by means other than restoration to the original state, a request for restoration to the original state cannot be made.’
If the required action is not taken within the time limits specified in the law, the right based on that action shall lapse. However, the regulation introduced for exceptional cases aims to prevent the loss of rights due to circumstances beyond one’s control.
In its decision dated 05.06.2020 and numbered 2019/1753 E., 2020/819 K., the 28th Civil Chamber of the Istanbul Regional Court of Appeal stated that “The court’s reasoned decision was served on the defendant’s representative on 30/04/2019, the defendant’s representative submitted the appeal petition on 15/05/2019, i.e. after the two-week period following the notification, however, with the second petition submitted by the defendant’s representative on 16/05/2019, the rest report dated 14/05/2019, issued by Dr K1, a paediatrician at Maslak X1 Hospital, for his daughter K2 with a diagnosis of acute nasopharyngitis, was submitted, and 2019 due to his daughter’s sudden illness, and that the submission of the petition originally prepared on 13/05/2019 could only be carried out on 15/05/2019 due to reasons beyond his control, which can also be understood from the information on the X2 account screen; It was requested that the appeals be examined on their merits, with the acceptance of requests for reinstatement under Articles 95 et seq. of the Code of Civil Procedure (HMK). Article 95/1 of the HMK states that ‘a person who, for reasons beyond their control, is unable to perform an act within the time specified by law or definitively specified by the judge may request reinstatement.’ Given that the defendant’s representative submitted a doctor’s report regarding his daughter’s illness on 14/05/2019, which coincided with the last day for the appeal application, it is understood that the defendant’s representative’s request for reinstatement should be evaluated appropriately and the appeal application should be examined on its merits.” It is stated that, with regard to the request for reinstatement, if a valid reason is presented for the appeal not being filed within the time limit, it shall be deemed to have been filed within the time limit and the appeal shall be evaluated on its merits.
Article 96 of the Code of Civil Procedure stipulates that ‘A request for reinstatement must be made within two weeks of the removal of the obstacle that prevented the action from being taken within the time limit.’ This imposes a time limit on requests for reinstatement. In its decision dated 10 December 2020, numbered 2020/2076 E., 2020/4107 K., the 9th Civil Chamber of the Istanbul Regional Court of Appeal stated: “The case concerns a claim for damages. The Court of First Instance decided to dismiss the case. The plaintiff appealed this decision on 24 June 2020. In its supplementary decision dated 7 September 2020, the court ruled to dismiss the appeal request on the grounds that the decision and court fees specified in the notice had not been paid within the legal time limit. The plaintiff’s representative filed a petition dated 06/11/2020 requesting reinstatement of the previous status and appealing the additional decision. Article 95 of the Code of Civil Procedure No. 6100, which regulates the request for reinstatement and the reviewing authority, states that if the necessary procedure cannot be carried out within the period specified in the law or definitively determined by the judge due to reasons beyond one’s control, a request for reinstatement may be made. Article 96 stipulates that the request for reinstatement must be made within two weeks of the removal of the obstacle preventing the reinstatement from being carried out within the time limit. Article 97 stipulates that the petition for reinstatement must state the reasons for the request and the evidence and indications supporting them. Article 98/2 provides that if the right to appeal the restoration is forfeited, the request shall be made to the Regional Court of Appeal.
In the present case, the local court’s supplementary decision dated 07/09/2020 was served on the plaintiff’s representative on 13/09/2020. The plaintiff’s representative, after the legal deadline had passed, filed an appeal, claiming that the appeal period had been missed for reasons beyond their control due to an office employee testing positive for Covid-19 and the office being placed under quarantine, and requested that the case be returned to its previous state. According to the test result attached to the petition, it is understood that the office employee tested positive on 09/09/2020. The quarantine period specified by the Turkish Ministry of Health on the stated date is 14 days and will end on 24/09/2020. In this case, pursuant to Article 96 of the Code of Civil Procedure, it is understood that the plaintiff’s representative’s request for reinstatement was made on 02/11/2020, after a period of two weeks had elapsed from 24/09/2020, when the obstacle ceased to exist, and therefore the request for reinstatement is not within the time limit. For the reasons explained, it has been ruled that the plaintiff’s representative’s request for reinstatement and, consequently, the appeal, which was not filed within the time limit, shall be rejected in accordance with Article 352/1-c of the Code of Civil Procedure. As seen in the Regional Court of Appeal’s decision, the necessary action must be taken within two weeks from the date on which the specific circumstances preventing the action from being taken cease to exist. The burden of proving the start and end dates of the unavoidable circumstances lies with the party requesting proof.
The second paragraph states: “In first instance and appeal proceedings, it is possible to request reinstatement until the final decision is made at the latest. However, if the final decision was rendered in the absence of one of the parties, a request for restoration may be made after the decision is rendered for the periods missed during the investigation phase.” The right to request reinstatement also exists after the final decision has been rendered, but this right is subject to the condition that the decision was rendered in the absence of the party wishing to exercise this right.
Article 97 specifies the formal requirements for the application: ‘Restoration shall be requested by petition. The petition shall state the grounds for the request and the evidence or indications thereof. Any action that could not be performed within the prescribed time limit must be performed within the time limit prescribed for requesting restoration.’ Article 98 regulates which authority shall examine requests for restoration. “Restoration for a procedure that could not be performed shall be requested from the court where the examination of that procedure would have taken place. Restoration shall be requested from the regional court of appeal if the right to appeal has been lost; if the right to appeal to the Court of Cassation has been lost, it shall be requested from the Court of Cassation.” In proceedings before the Local Court, if a procedure cannot be performed due to reasons beyond one’s control, the court hearing the case shall evaluate the request for restoration. In requests relating to appeals, the judicial authority whose right of appeal has been lost will make the assessment.
A request for restoration does not require the proceedings to be postponed and does not prevent the enforcement of the judgment. However, if the court reviewing the request finds it justified, it may decide to postpone the trial or suspend the enforcement of the judgment, subject to the provision of security. The court may decide to postpone the trial or suspend enforcement even without the provision of security, if necessary.
The costs incurred as a result of the request for restoration to the original state shall be borne by the party making the request. However, if the opposing party has caused the costs to increase by raising unfounded objections to the request for restoration to the original state, the judge may decide that all or part of the costs shall be borne by the opposing party.